U.S. District Judge William F. Jung ruled on October 4 in Vazzo v. City of Tampa, 2019 U.S. Dist. LEXIS 172734, 2019 WL 4919302 (M.D. Fla.), that the state of Florida’s pervasive regulation of professional health care deprives the city of Tampa from the authority to impose sanctions on licensed health care workers who perform “conversion therapy” on minors.
Jung’s ruling was a startling departure from the way most courts have responded to challenges against laws cracking down on the charlatans who engage in this discredited practice. Several federal courts, including some courts of appeals, have rejected challenges based on the 1st and 14th Amendments, but those cases mainly involved state laws. Although the challengers in the Tampa case – Robert L. Vazzo, David Pickup, and Soli Deo Gloria International, Inc. – made those same constitutional arguments, which provided the basis for their case to be in federal court, Judge Jung resolved the case on a state law basis that appeared to be a mere make-weight in the original Complaint.
Tampa passed its ordinance in April 2017. It bans “therapy” within the City by medical doctors and mental health professionals intended to assist minors to avoid being gay or transgender. The ordinance uses the term “conversion therapy,” but the practice is also sometimes referred to as “sexual orientation change efforts” or SOCE. The ordinance cites numerous professional studies discrediting SOCE and contending that it may be harmful to minors, and also cites decisions by the U.S. Courts of Appeals for the 3rd and 9th Circuits upholding New Jersey and California statutes making the performance of this “therapy” a violation of licensing standards that could subject the practitioners to penalties and possible loss of licensure. A New Jersey state court has also condemned the practice under that state’s consumer fraud statute.
The Tampa City Council stated its intention to protect minors from being subjected to a potentially harmful practice, premised on its authority to exercise its police power for the public safety, health and welfare. Enforcement was assigned to the same city employees who enforce other standards and codes.
Vazzo, a marriage and family therapist licensed in Florida, practices SOCE on minors, claiming that his treatment may help minors “reduce or eliminate same-sex sexual attractions, behaviors or identity,” and claiming that his therapy is rendered entirely in speech. He also claimed that all clients initiate SOCE counseling by giving informed consent; a questionable assertion when they are minors who, under the law, are recognized as having only limited capacity to give legal consent to a variety of things. As a practical matter, this normally involves parents who want to “cure” their children from being gay or trans and give consent to the SOCE practitioner on their children’s behalf.
Co-plaintiff David Pickup was the lead plaintiff in a case challenging California’s state law ban on SOCE, and claims in this case that he had intended to get Florida certification and treat patients in Tampa. The other plaintiff is an organization that refers individuals, including minors, for SOCE treatment.
Jung invoked a doctrine called “implied preemption.” When a state pervasively regulates a particular activity, it may be found to have “occupied the field” of regulating that activity, thus depriving local governments of doing the same, particularly if the local regulation may conflict in some way with the state regulation or interfere with the state’s ability effectively to regulate. By contrast, the doctrine of “express preemption” applies to situations where the state constitution or a state law or regulation explicitly reserves sole authority over a particular subject to the state. Thus, application of implied preemption requires the court to provide a justification for finding that the local government should not be allowed to regulate a particular activity, whereas “express preemption” relies on a clear statement by the legislature that its regulation of a field is exclusive.
Analyzing implied preemption in this case, Judge Jung wrote, “There is no grant of authority by the Florida legislature to municipalities to substantively regulate healthcare treatment and discipline. The State, not localities, occupies this field. . . Here, there is nothing local or unique to Tampa about SOCE that would suggest the statewide, uniform medical regulation regime should vary because of Tampa’s peculiarities, and should vary across the State, from town to town and from county to county. The matter legislated against – SOCE – is statewide, not Tampa-specific. And, a uniform and statewide system of healthcare treatment and practitioner discipline already exists, for sound reasons. Implied preemption is a disfavored remedy because cities have broad powers to address municipal concerns. But substantive regulation of psychotherapy is a State, not a municipal concern.”
The judge also suggested that the Tampa Ordinance “encroaches upon” five state-mandated areas.
First, he found that Florida’s constitution protects a broad right of privacy against government intrusions, which “suggests that government should stay out of the therapy room.”
Second, he notes that Florida court cases recognize that “with very few exceptions, parents are responsible for selecting the manner of medical treatment received by their children,” and the ordinance interferes with the right of parents to select SOCE for their children.
Third, he points to the state’s statutory “Patient Bill of Rights,” which protects a patient’s right to select the course of treatment that he or she deems best. He finds that “the Tampa Ordinance enters this area at odds with this portion of the Florida statutory scheme.”
Fourth, he notes a provision of the Florida law regulating health care which states, as “legislative intent,” that “citizens be able to make informed choices for any type of health care they deem to be an effective option for treating human disease, pain, injury, deformity, or other physical or mental condition,” and that “the health care practitioner may, in his or her discretion and without restriction, recommend any mode or treatment that is, in his or her judgment, in the best interest of the patience in accordance with the provisions of his or her license.” He asserts that the Tampa Ordinance seeks to place a restriction where state law says there should be none.
Fifth, he asserts that the Tampa Ordinance interferes with the state’s statutory doctrine of informed consent. Florida law allows health care workers to perform procedures with the informed consent of their patients, by protecting doctors against liability for performing procedures with a patient’s informed consent “so long as the substantial risks and hazards are fully disclosed and accepted.” He finds that the Tampa Ordinance “simply ignores this well-known and broad Florida concept of informed consent,” subjecting health care practitioners to potential sanctions if they perform SOCE with the full informed consent of their patients.
In effect, he finds, if opponents of SOCE want to see the government restrict health care practitioners from engaging in this practice, they have to convince the medical boards that control the licensing practice that they should condemn SOCE as a violation of standards, or get the legislature to ban the practice. “Tampa’s divergent standard for punishing errant mental health therapy is relevant in the preemption analysis because it creates a danger of conflict with an area pervasively regulated, for which the Legislature has stated a policy of statewide uniformity,” he concluded, noting particularly the detailed regulations and educational requirements for those seeking to hold the kind of licensing certification that Vazzo has earned.
Judge Jung, treading in controversial waters, goes on to challenge the competency of the Tampa City Council to set standards for medical practice. “With due respect for the citizen legislators on the Tampa City Council, none are skilled in mental health issues,” he wrote, “nor are any of the City’s code enforcement personnel. In contrast the Florida Department of Health, with its skilled adjudicatory bodies, is equipped to address this dynamic area of psychotherapy.” Then he challenges the “certitude” of the City Council’s factual findings by cherry picking isolated statements from statements by the city’s expert witnesses in this case that might be used to impugn some of the conclusions about SOCE and its effects. Asserting that “the field of gender expression is especially complex,” he suggests that it is best left to the state regulators.
Having decided the case entirely on preemption grounds, Judge Jung expressed no view regarding the constitutional arguments under the 1st and 14th Amendments. Those arguments have been mainly rejected by the courts, although some uncertainty has been injecting into this field by comments made by Supreme Court Justice Clarence Thomas last year in an unrelated case, in which he castigated the concept of “professional speech” and cited with disdain the 3rd and 9th Circuit decisions mentioned above for having used that concept to analyze the 1st Amendment free speech issues.
Ironically, at the same time as Judge Jung was rendering his decision, rulings rejecting challenges to anti-conversion therapy laws passed by two other local Florida governments are on appeal before the 11th Circuit Court of Appeals. The Florida legislature and state house, fully controlled by Republicans, are not going to address this issue, which is why Florida has been a hotbed of local legislative activity. It will be interesting to see whether the preemption issue is raised by the 11th Circuit in considering the appeals in those cases, and whether the City of Tampa – which has an out lesbian mayor and a very political active LGBTQ community – will seek to appeal this ruling.
Vazzo and his co-plaintiffs are represented by lawyers from Liberty Counsel, an advocacy legal organization that seeks to deny liberty to LGBTQ people whenever possible.
Judge Jung, appointed by President Donald Trump, has been on the bench for barely a year.
Tags: ban on conversion therapy for minors, ban on SOCE for minors, City of Tampa, conversion therapy, David Pickup, doctor patient relationship, express preemption, Florida, freedom of speech, implied preemption of municipal law, Inc., informed consent, Liberty Counsel, Middle District of Florida, Robert L. Vazzo, sexual orientation change efforts, SOCE, Soli Deo Gloria International, talk therapy, US District Court, US District Judge William F. Jung, Vazzo v. City of Tampa